IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KING ADE OLOWU :

: CIVIL ACTION

v. :

: NO. 05-2085

JUDITH L. SCHWANK, et al. :

ORDER-MEMORANDUM

Padova, J. 

AND NOW, this 23rd day of August, 2005, upon consideration of

Defendant Marybeth Jackson’s Motion to Dismiss (Doc. No. 26),

Defendant Jesse Kirsch’s Motion to Dismiss (Doc. No. 29),

Defendants Judith Schwank, Mark Scott, Thomas Gahewski, Sr., George

Wagner, and the Prison Board’s Motion to Dismiss (Doc. No. 31), and

all filings submitted in response thereto, IT IS HEREBY ORDERED

that said Motions are GRANTED and this case is DISMISSED in its

entirety. The Clerk of Court shall CLOSE this case for statistical

purposes.

Plaintiff, who is in the custody of the Immigration and

Naturalization Service (“INS”), has been detained at Berks County

Prison in Leesport, Pennsylvania since July 7, 2003. (Compl. at 2-

4.) On June 2, 2004, Plaintiff fell from his bed while sleeping

and experienced severe pain in his right shoulder. (Id. at 4.)

That morning, Plaintiff slipped in the bathroom and again fell on

his already injured right shoulder. (Id.) Plaintiff placed a sick

call, and was seen by the staff medical nurse. (Id.) Upon

examining Plaintiff, the nurse proscribed him Motrin twice a day.

(Id.) Plaintiff continued to experience severe pain even after

Case 2:05-cv-02085-JP Document 36 Filed 08/24/05 Page 1 of 9
2

having taken the pills, and repeatedly sought to be re-examined by

the medical department. (Id.) 

In late June, Plaintiff was seen by Defendant Jesse Kirsch, a

physician assistant, who gave Plaintiff a physical exam. (Id.)

Defendant Kirsch concluded that there was no indication of severe

injury, and prescribed Plaintiff four different pills, including

Naprosyn, which were to be taken twice a day. (Id.) Plaintiff had

a severe negative reaction to these pills, causing him to suffer

from depression, irregular heart rates, blurry vision, and

indigestion problems. (Id. at 4-5.) Based on these symptoms,

Plaintiff placed several new sick calls, and was re-examined by

Defendant Kirsch on July 9, 2004. (Id. at 5.) Upon hearing of

Plaintiff’s negative reaction to the prescribed medications,

Defendant Kirsch immediately gave Plaintiff some unidentified

medicine and prescribed other medicines for Plaintiff which were to

be taken regularly. (Id.) 

Plaintiff continued to experience pain and sleeplessness after

his second visit with Defendant Kirsch. (Id.) Plaintiff wrote a

letter to the medical department on July 19, 2004, seeking an x-ray

examination of his shoulder. (Id.) The medical department

responded that Plaintiff had just been seen, and that he would have

to allow the medicine some time before being re-examined. (Id.)

On July 22, 2004, Plaintiff again wrote to the medical department,

and was once more denied further medical care. (Id.) Plaintiff

wrote several additional letters to the medical department

Case 2:05-cv-02085-JP Document 36 Filed 08/24/05 Page 2 of 9
3

throughout the month of August. (Id. at 6.)

On November 4, 2004, Plaintiff’s right shoulder was x-rayed.

(Id. at 6.) On November 11, 2004, Defendant Dr. Marybeth Jackson

performed a full physical exam on Plaintiff, and concluded that

Plaintiff’s injury should be examined by an outside physician as

soon as the INS authorized such exam. (Id.) Petitioner wrote a

letter to the District’s INS Office Supervisor, but received no

response. (Id.) On December 20, 2004, Plaintiff placed another

sick call as a follow-up on Dr. Jackson’s recommendation that an

outside physical examination be performed. (Id.) In response,

prison officials indicated that a request had been sent to the INS

for authorization. (Id.) 

Plaintiff next wrote a grievance report to Defendant George

Wagner, the Warden of Berks County Prison. (Id.) Defendant Wagner

responded to Plaintiff’s grievance report, and indicated that the

prison officials were currently awaiting approval from the INS to

conduct further testing and would schedule treatment for Plaintiff

as soon as such approval was received. (Id.) Plaintiff has since

been examined, but continues to take Naprosyn even though a

December 29, 2004 article from the Readers Eagle newspaper

indicated a link between the usage of this painkiller and the

occurrence of heart attacks and strokes. (Id. at 6-7.) 

When determining a Motion to Dismiss pursuant to Rule

12(b)(6), the court may look only to the facts alleged in the

complaint and its attachments. Jordan v. Fox, Rothschild, O'Brien

Case 2:05-cv-02085-JP Document 36 Filed 08/24/05 Page 3 of 9
1 It is undisputed that the Complaint adequately alleges that

the Defendants acted under the color of state law.

4

& Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). The court must

accept as true all well pleaded allegations in the complaint and

view them in the light most favorable to the Plaintiff. Angelastro

v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985).

A court, however, need not credit a complaint’s “bald assertions”

or “legal conclusions” when deciding a motion to dismiss. Morse v.

Lower Merion School District, 132 F.3d 902, 906 (3d Cir. 1997)

(citations omitted). A Rule 12(b)(6) motion will be granted when

a Plaintiff cannot prove any set of facts, consistent with the

complaint, which would entitle him or her to relief. Ransom v.

Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). 

Plaintiff has brought this pro se Section 1983 action against

Defendants for a violation of his constitutional right to adequate

medical care. Section 1983 provides a remedy against “any person”

who, under the color of the law, deprives another of his

constitutional rights. 42 U.S.C. § 1983. To establish a claim

under § 1983, a plaintiff must set forth: (1) a deprivation of a

federally protected right, and (2) commission of the deprivation by

one acting under color of state law.1 Lake v. Arnold, 112 F.3d

682, 689 (3d Cir. 1997).

Plaintiff, who at all relevant times was an INS detainee,

alleges that Defendants violated his right to adequate medical care

under the Fourteenth Amendment. The Court notes that, although the

Case 2:05-cv-02085-JP Document 36 Filed 08/24/05 Page 4 of 9
5

Complaint clearly indicates that Plaintiff has brought this action

under the Fourteenth Amendment, Defendants have analyzed

Plaintiff’s claim under the Eighth Amendment’s prohibition of cruel

and unusual punishment. However, “Eighth Amendment scrutiny is

appropriate only after . . . [conviction, because] the State does

not acquire the power to punish with which the Eight Amendment is

concerned until after it has secured a formal adjudication of guilt

in accordance with due process of law.” Ingraham v. Wright, 430

U.S. 651, 671-72, n.40 (1977). Pre-trial detainees, for whom no

adjudication of guilt has taken place yet, derive their right to

medical care from the Fourteenth Amendment. City of Revere v.

Mass. Gen. Hosp., 463 U.S. 239, 244 (1983). “The term pre-trial

detainee also includes those in custody awaiting hearing or

deportation by the Immigration or Naturalization Service.” Okocci

v. Klein, 270 F. Supp. 2d 603, 610 n.3 (E.D. Pa. 2003). 

The Fourteenth Amendment “require[s] the responsible

government or governmental agency to provide medical care” to pretrial detainees. City of Revere, 463 U.S. at 244. “In evaluating

the constitutionality of conditions . . . of pretrial detention

that implicate only the protection against deprivation of liberty

without due process of law, . . . the proper inquiry is whether

those conditions amount to punishment of the detainee.” Bell v.

Wolfish, 441 U.S. 520, 535 (1979). It is well-established that

“the due process rights of a [pre-trial detainee] are at least as

great as the Eighth Amendment protections available to a convicted

Case 2:05-cv-02085-JP Document 36 Filed 08/24/05 Page 5 of 9
6

prisoner.” Id. Accordingly, “the Eight Amendment [i]s relevant to

conditions of pre-trial detainees only because it establishes a

floor.” Hubbard v. Taylor, 399 F.3d 150, 165-66 (3d Cir. 2005).

Nonetheless, courts addressing pre-trial detainees’ claims of

inadequate medical treatment have looked to the Eight Amendment’s

standard for cruel and unusual punishment. See Hubbard, 399 F.3d

at 166; see also Lassiter v. Buskirk, Civ. A. No. 03-5511, 2005 WL

1006313, at *4 (E.D. Pa. Apr. 28 2005). Accordingly, even though

Defendants’ Motions address only the Eight Amendment’s standard for

claims of cruel and unusual punishment, the Court will construe

Defendants’ Motions as seeking dismissal of Plaintiff’s Fourteenth

Amendment claims. 

To state a valid claim for unconstitutional punishment by

deprivation of medical care under the Fourteenth Amendment, a

plaintiff must allege (1) a serious medical need; and (2) acts or

omissions by the prison officials that indicate deliberate

indifference to that need. Natale v. Camden County Corr. Facility,

318 F.3d 575, 582 (3d Cir. 2003). A medical need is serious if it

“has been diagnosed by a physician as requiring treatment or . . .

is so obvious that a lay person would easily recognize the

necessity for a doctor’s attention.” Monmouth County Corr. Inst’l

Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace

v. Fauver, 479 F. Supp. 456, 458 (D.N.J. 1979)). The seriousness

prong is also met if the effect of denying or delaying care results

in the wanton infliction of pain or a life-long handicap or

Case 2:05-cv-02085-JP Document 36 Filed 08/24/05 Page 6 of 9
7

permanent loss. Id. Deliberate indifference is a “subjective

standard of liability consistent with recklessness as that term is

defined in criminal law.” Natale, 318 F.3d at 582 (quoting Nicini

v. Morra, 212 F.3d 798, 811 (3d Cir. 2000)(en banc)). The United

States Court of Appeals for the Third Circuit has found deliberate

indifference “in situations where ‘necessary medical treatment is

delayed for non-medical reasons’” or the defendants “kn[ew] of and

disregard[ed] an excessive risk to inmate health or safety.”

Natale, 318 F.3d at 582 (quoting Lanzaro, 834 F.2d at 347). 

Defendants argue that the Complaint should be dismissed

because Plaintiff received adequate medical treatment while housed

at Berks County Prison and, therefore, cannot establish that his

constitutional right to adequate medical care was violated.

“‘Where a[n] [inmate] has received some medical attention and the

dispute is over the adequacy of the treatment, federal courts are

generally reluctant to second guess medical judgment and to

constitutionalize claims which sound in state tort law.’” United

States ex rel. Walker v. Fayette County, Pa., 599 F.2d 573, 575 n.2

(3d Cir. 1979) (quoting Westlake v. Lucas, 537 F.2d 857, 860 n.5

(6th Cir. 1976)). Accordingly, “physicians’ decisions not to

perform particular tests or diagnostic measures on a[n] [inmate]

will not support a § 1983 claim.” Thomas v. Zinkel, 155 F. Supp.

2d 408, 411 (E.D. Pa. 2001).

Here, Plaintiff alleges that he received insufficient and

improper care for his shoulder injury. Specifically, the Complaint

Case 2:05-cv-02085-JP Document 36 Filed 08/24/05 Page 7 of 9
8

alleges that Plaintiff was denied outside treatment, was not seen

frequently enough by the prison’s medical staff, was prescribed an

improper pain medication, and was not x-rayed in a timely manner.

A prison official’s refusal to follow a recommendation from its

medical staff for outside treatment and decision to instead provide

an inmate with x-rays and painkillers does not establish deliberate

indifference. Santiago v. Guarini, Civ. A. No. 03-4375, 2004 WL

1535775, at *2 (E.D. Pa. July 8, 2004) (dismissing complaint where

inmate slipped in cell, nurse informed prison officials that he

needed immediate outside medical treatment, and plaintiff instead

was x-rayed, given Motrin, and placed in a half-cast); see also

Despaigne v. Crolew, 89 F. Supp. 2d 582, 585 (E.D. Pa. 2000)

(granting summary judgment to defendants where inmate suffered

“swelling and bruising” from altercation and was treated with pain

medication); Farley v. Doe, 840 F. Supp. 356, 357 (E.D. Pa. 1993)

(dismissing claim as frivolous where inmate injured back in

basketball game and was treated with x-rays and pain medication).

Indeed, such allegations sound in state tort law rather than

constitutional law, and give rise to negligence claims for medical

malpractice. Santiago, 2004 WL 1535775, at *2. 

Here, the Complaint’s allegations similarly challenge the

adequacy of the treatment received by Plaintiff, and can thus state

only a medical malpractice claim. See United States ex rel.

Walker, 599 F.2d at 575 n.2. It is the “well-established law in

this and virtually every circuit that actions characterizable as

Case 2:05-cv-02085-JP Document 36 Filed 08/24/05 Page 8 of 9
9

medical malpractice do not rise to the level of ‘deliberate

indifference.’” Parham v. Johnson, 126 F.3d 454, 458 n.7 (3d Cir.

1997). As Defendants here were, therefore, not deliberately

indifferent to a serious medical need, the Court concludes that the

conditions of Plaintiff’s confinement did not amount to punishment.

Bell, 441 U.S. at 535 (1979). Accordingly, the Complaint’s

allegations do not give rise to a valid claim for inadequate

medical care under the Fourteenth Amendment, and Defendants’

Motions to Dismiss are granted.

BY THE COURT:

/s/ John R. Padova

 

John R. Padova, J.

Case 2:05-cv-02085-JP Document 36 Filed 08/24/05 Page 9 of 9